People suffering from dementia and the Psychiatric Hospitals (Compulsory Admission) Act

Published on: 5 June 2003

Audit

Summary
Interpreting responsibility
The BOPZ and WGBO
Transparent use of limitations on freedom of movement
Recommendations
Response of the State Secretary and afterword by the Court of Audit

Summary

Elderly people suffering from dementia belong to one of the most vulnerable groups in society and their numbers are growing. The majority of elderly people with dementia who live in nursing or care homes have been placed there non-voluntarily. At the nursing and care homes investigated by the Court of Audit, this applies to 96% of elderly people with dementia. The legal rights of this group are protected by the Psychiatric Hospitals (Compulsory Admission) Act (BOPZ). Since 1999, this Act has also applied to care homes.

The Act determines when compulsory admission can occur, what criteria must be met by institutions, and what rules must be followed by carers when giving treatment, particularly where restrictions on freedom of movement are necessary. Registering people with dementia and reporting them to the Health Care Inspectorate were made compulsory in order to shed light on the use of involuntary treatment and limitations on freedom of movement in emergency situations. The supervision exercised by the Health Care Inspectorate provides an extra safeguard for legal protection.

From July to October 2002, the Court of Audit carried out an audit of the implementation of the BOPZ in psychogeriatrics. The main concern was how the organisations involved in implementing the Act interpreted their responsibility. In particular, the audit examined the use of limitations on freedom of movement in care homes in five care administration regions.

The audit found a gap between the purpose and provisions of the Act and the decrees implementing it on the one hand and the practicability of the Act with respect to care for people with dementia on the other.

This has implications for the protection of the legal status of elderly people with dementia and for transparency in safeguarding that legal protection.

The audit showed that limitations on freedom of movement in care of the elderly rarely occurs under duress or in an emergency situation. This could be because although the Act mainly provides for temporary use of such limitations, the measures actually applied to elderly people with dementia are often long term. Furthermore, not all resistance to limitations on freedom of movement is acknowledged as such. And although elderly people with dementia mainly need nursing and care, the Act presumes they will be given treatment. It is often impossible to cure this mental disorder, so there is little point in providing treatment. The Court of Audit concludes that hospitals and many care homes that ought to have BOPZ status do not qualify because only separate sections of these institutions, and not the institution as a whole, meet the necessary criteria. On this point, the BOPZ does not concur with the policy of many care homes that do not qualify for BOPZ status and which allow elderly people with dementia to live in private apartments for as long as possible.

Interpreting responsibility

Regional indication offices issue recommendations on admission to care of the elderly and are responsible for determining whether an individual accepts or resists admission. Yet they find it difficult to define the key concept of resistance, which is essential for establishing whether an individual neither accepts nor resists admission, and whether admission is indeed necessary.

Although care administration offices are not given a specific task under the BOPZ, they are responsible for the purchase and assignment of care. However, they are unaware of the total capacity for psychogeriatrics in the region, or which institutions are qualified to apply the BOPZ and how many places they have.

When a particular section of a nursing or care home qualifies for BOPZ status, they may apply limitations on freedom of movement under certain conditions. But care providers are unsure about what exactly is meant by 'limitations on freedom of movements' or 'resistance'.

The Health Care Inspectorate monitors the quality of care and the implementation of the BOPZ. BOPZ frameworks and tools are developed at national level and a work plan is drawn up every year, although regional inspectors monitor their own regions in different ways.

The role of the Minister of Health, Welfare and Sport is to support the organisations implementing the BOPZ by means of legislation, policy and evaluation and by making funds available. The Minister is also responsible for safeguarding basic human rights, including self-determination, freedom of movement and physical integrity.

The audit found differences between the regions with respect to admissions criteria, funding, the number of BOPZ places and the provision and monitoring of care by the Health Care Inspectorate. These differences mean that there is no comparable, transparent information on the implementation of the BOPZ. They also give rise to disparities in the protection of the legal rights of people suffering from dementia, mainly because the BOPZ and the decrees implementing it contain ambiguous concepts and the organisations concerned view their role in different ways. In cases where differences result from ambiguity, the Minister is responsible for providing clarification. After some initial setbacks, information meetings are now being held and information material is being developed. However, key concepts such as 'resistance' and 'limitations on freedom of movement' are still unclear.

The BOPZ and WGBO

Limitation measures, such as short-acting sedatives, are also applied under the Medical Treatment Contracts Act (WGBO). This Act permits limitations when there is a medical need for them to prevent physical harm. The BOPZ refers to the need to avoid putting mentally disturbed patients in serious danger. In practice, it is not always clear in the case of dementia whether force or restraint is applied within the framework of the BOPZ or WGBO. Most nursing and care homes apply limitations in order to protect clients from serious consequences, such as falling or wandering. The distinction between the BOPZ and WGBO has an important bearing on the level of protection of patients' legal rights and on the level of transparency, particularly with regard to recording and reporting the use of restraint measures.

Transparent use of limitations on freedom of movement

It is difficult to get a clear picture of the application of limitations over a whole year, especially since institutions are not particularly concerned about keeping a record. Information was obtained from most institutions on the situation at the time of the audit. According to the Court of Audit, a central record would increase awareness of the use of limitations.

Recommendations

The Court of Audit advises the Minister of Health, Welfare and Sport to improve the implementation of the BOPZ. This can be achieved by clarifying key concepts and bringing the criteria that care of the elderly institutions have to meet to qualify for BOPZ status more in line with practical developments. It also recommends exploring the possibility and desirability of creating a single legal framework better adapted to the needs of this sector. It is important to ensure that the legal rights of elderly people with dementia are safeguarded.

The Court of Audit stresses the need for institutions to record their use of limitations, even in cases where patients have given their consent. The audit revealed that institutions that kept a central record were more aware of the use of limitations and therefore more critical of the need for them. This facilitated the work of the Health Care Inspectorate, which ensures that the legal rights of elderly people with dementia are protected and that limitations are applied in a transparent way.

The need for more information about dementia came up in many discussions, although it was not specifically addressed in the audit. Regional indication offices and care homes report that the amount of knowledge about dementia among general practitioners varies widely. This means that they cannot always respond in a rapid and effective way. Relatives, too, often need to be better informed about the illness. The Court of Audit therefore recommends studying the possibility of setting up an advisory office for geriatrics research or at least improving the information provided about dementia.

Response of the State Secretary and afterword by the Court of Audit

The State Secretary for Health, Welfare and Sport responded in writing to the findings of the Court of Audit on 29 April 2003, and largely endorsed its conclusions and recommendations.

The State Secretary supports the conclusion that the BOPZ on many counts does not correspond at all with current practice. In her view, the sticking point is not the ambiguity surrounding key concepts but rather the application of these concepts in the care provided to elderly people with dementia. She also supports the need to create another legal framework for psychogeriatrics besides that for care for the mentally handicapped.

The question of whether the BOPZ eligibility criteria for care of the elderly institutions should be brought more into line with developments in practice will depend on an audit that is due to be completed in summer 2003. The audit will examine whether there is a difference in the quality of care offered to residents of care homes with dementia depending on whether they are placed in a separate section. Once the outcome of the audit is known, possible changes in care policy will be considered.

The State Secretary believes that an institution that keeps a central record of limitations on freedom of movement level has the tools to evaluate and improve the quality of care provided. She considers this to be primarily the responsibility of institutions themselves. The branch organisation has an important role to play in the development of ICT instruments for the care sector.

The State Secretary believes that certain aspects of care of the elderly must be reviewed, including non-ambiguous admissions criteria, the purchase and assignment of BOPZ places and the standardisation of inspection. She adds that care administration offices in particular are responsible for capacity for elderly people with dementia. The government is responsible for making sure that the system runs smoothly and is accountable in this regard.

The State Secretary will examine whether setting up an advisory office for geriatrics and providing more information about dementia dovetail with her policy to strengthen the care network at regional and local level.

The Court of Audit welcomes the State Secretary's positive response to its conclusions and recommendations, especially given the growing numbers of elderly people suffering from dementia and with a view to ensuring equality before the law. The rights of elderly people who are admitted to care non-voluntarily must be made more explicit in a way allows uniform application of the law.

The Court of Audit believes that the State Secretary is responsible for identifying and where necessary eliminating deficiencies in the system, for example in access to care for elderly people with dementia. If the care administration offices responsible for assigning care do not know the number of psychogeriatric and BOPZ places in their regions, the State Secretary cannot determine at national level whether elderly people with dementia are guaranteed access to care.